Practical tips for professional attorneys and deputies: Part 1

Scott Walker, Consultant Solicitor at Richard Nelson Solicitors, shares his experiences and some practical tips for those working as a professional attorney or deputy | Part 1

Being a professional attorney or deputy changes you – both as a person and as a lawyer – that’s certainly been my experience.

As I sat in my student accommodation studying law all those years ago, never in a million years did I think that one day I would be food shopping, buying tights, and acting as a surrogate carer for my clients.

But I wouldn’t change it for the world. It’s life-affirming and rewarding in ways I could never have imagined. Seeing the world through the eyes of somebody living with a mental illness is a transformational experience but it is one where you can find your true value in the work that you do for your clients. Clients who are also loving family members, friends, and are valued in their extended community.

There are of course many challenges: listening to a client tell you that they have had enough and want to end it all, arguing family members, and difficult personalities to manage. Then of course we were hit with Covid-19 and the challenges multiplied.

This work is not for the faint-hearted!

From my experience, I think some firms go into this type of work not really knowing what is expected, or thinking that it is necessary but easy. There are of course lots of experienced professional deputies and their teams. But it takes time to build up a suitable level of experience within a team. It also requires complete dedication. Explaining this to your fellow equity partners is a challenge in itself!

There is a huge array of resources available for those involved in this type of work. For me, I wanted resources that gave me insight into the reality and the nitty-gritty of this work. The practical experiences from those that have been there and done it. However, I couldn’t find anything like this. So, I decided to write something myself to help others.

The hope of this article is to share some of those experiences and practical tips to help manage and deal with the unexpected and challenges ahead.

1. Make a decision

The first step is to decide if you want to be an attorney or deputy. It may seem obvious, but you do have a choice and if you feel that you haven’t got the resources to dedicate to this area of work don’t do it.

It is best to be fully prepared and understand the responsibility that comes with being a professional attorney or deputy before agreeing to accept the position. In fact, the Mental Capacity Act Code of Practice, paragraph 7.59, states that attorneys who are being paid or hold professional qualifications must demonstrate a higher degree of care and skill.

Alternatively, you may decide to just act as a professional attorney and not as a professional deputy. Arguably, being a professional Court of Protection Deputy carries a higher amount of administrative issues and restrictions, which increase the burden of carrying out such work.

2. Acceptance

Accept that some work you do you may not be able to charge for. This is particularly so when acting as a Court of Protection deputy and dealing with the costs assessment process. However, this may be easier to manage if you are a professional attorney but you need to set parameters with the client. This moves me nicely into point three.

3. Know your clients

When acting in this role, getting to know your client as a person is fundamental. What are their likes and dislikes? What makes them tick? What do they want if they lose mental capacity? Your role is to give them a voice.

Some important points you may wish to consider are:

1. Set out how you will help them and how they want you to help them.
2. Discuss your charging structure and how fees will be incurred, what is included and what isn’t. Ensure you are clear about what you are charging the client for. For example, will you be charging for travel time, visits, carrying out domestic duties, and keeping in touch with the client before you are called upon to act.
3. Establish whether the client will need any additional support.
4. Discuss who is in their existing support network and who to contact to help you manage the clients’ affairs.
5. Discuss the clients’ wishes, feelings, beliefs, and values. Think about any religious views and discuss any investment issues, such as ethical investments. You may also want to discuss any charities the client supports or may wish to support in the future.
6. Agree with the client on how often you will keep in touch and whether there will be a charge for that.
7. Document all your discussions with the client. Use a letter of wishes as this can be updated in the future. Don’t be tempted to note updates in an attendance note on the client’s file as this may not be picked up when you are required to act for the client. Even if you are not proposing to be appointed as a health and welfare attorney for the client, you may wish to note any particular health and welfare issues in the letter of wishes. There is a crossover with health and welfare matters even if you are just an attorney or deputy for financial affairs.

It is more difficult to establish the above if you are already appointed or acting as a professional deputy. However, do whatever is possible. For example, speak with the family and your client’s support network to see what they can do and what they know about the client’s past, present, and future wishes and feelings. Speak with carers, care home managers, and any case workers or social workers who are looking after your client.

Be prepared to have conversations with your client before they lose mental capacity. This will allow your client to make informed choices about both the appointment itself and the kind of decisions they wish you to make on their behalf, and more importantly when those decisions can be made. You need to be clear whether the client wishes you to make decisions for them when they have mental capacity or only when they have lost mental capacity (and how loss of capacity should be established).

The view of the Office of the Public Guardian is that unless a Lasting Powers of Attorney intends that the duties of an attorney are deferred until a future event (for example, lack of mental capacity), then those duties are binding on the attorney as soon as the Lasting Power of Attorney is registered. Therefore, getting to know your client and keeping in touch with them at regular intervals is really important.

Part 2 will follow next week exclusively on Today’s Wills and Probate

For 15 years, Scott has been helping clients to achieve peace of mind and to deal with the practicalities of death and old age. Scott has built up a wealth of experience in Wills and Probate. He has been a Consultant Solicitor at Richard Nelson Solicitors since January 2022. He made the career move so that he can serve his clients flexibly by providing a safe and inclusive space. Scott has acted for a range of clients including advising on elderly and vulnerable client matters. This includes acting for many clients who have lost the mental capacity to make their own decisions and manage their own affairs. Scott is well placed to offer advice to Attorneys and Deputies acting in this role. Contact Scott: Send him a message on Linkedin, send him an email to scottwalker@richardnelsonllp.co.uk or call 0773 485 9304